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Immigration Detention: We need to challenge routinisation of migrant imprisonment

Virginie Semedo studied human rights law at the University of Aix-Marseille (France). She has worked as an intern in the French Courts helping to review asylum applications. She has also worked with the migrants’ rights organisation, La Cimade, and has been particularly concerned with the position of detained migrants.

The UK is often seen by other Europeans as an untypical country which likes to keep its differences: English people still have a Queen, they are not using the Euro and above all they do not have a fixed limit duration for the detention of immigrants.

Indeed, the UK is one of only seven European countries that have not set a limit on how long they lock up migrants who have been refused permission to stay. France has a limit of 32 days, Italy and Spain of 40 days and Ireland of 56 days. The detention policy in the UK has been the subject of sustained international and national criticisms but remains unchanged, or changed but in an unexpected way.

The functioning of the Immigration detention
Nearly 30,000 people every year experience immigration detention in the UK but it is difficult to evaluate with accuracy how many immigrants and asylum seekers are currently held on administrative detention and for how long. According to the Home Office statistics in the third quarter of 2009 there were a total of 2885 persons detained in the UKBA estate. The great majority of them (72%) were asylum detainees. The 11 Immigration Removal Centres scattered around the country hold foreign national prisoners, irregular migrants (people enter the UK without being cleared at a border, or over-stayers and other in breach of their conditions of leave), refused asylum seekers who are due to be deported or are having their cases reviewed and asylum seeker under the fast track procedure.

The power to detain is laid down on schedules 2 and 3 to the Immigration Act 1971. An immigration officer and, since 2002, the Secretary of State, who has reasonable grounds to believe that removal directions will be issued, has the power to order the detention of the person concerned. In the 1998 White Paper “Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum” the government states that immigration detention “would most usually be appropriate: to effect removal; initially to establish a person’s identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release”.

All detainees have the right to apply for bail to the Immigration and Asylum Chamber of the First tier Tribunal (the former Asylum and Immigration Tribunal) which is required to presume in favour of release: the burden of proof is on UKBA to justify detention. However, rates of release are low, particularly for detainees with criminal convictions.

The way in which the detention should be used is clear and does not require any debate: the Home Office states itself that “Detention must be used sparingly, and for the shortest period necessary”. Under the law, detention can be justified by the prospect of a speedy removal, the risk that they will abscond and any risk that they would commit an offence or pose harm to the public. All reasonable alternatives to detention should be considered first. Nevertheless, the detention seems to be used in first resort as a means of control immigration and not in last resort as it should be. The concern about this situation is rising.

A growing concern
A wide range of organisations have expressed concerns about policy on the detention migrant. Institutional bodies such as the Children Commissioner and H.M. Inspectorate of Prisons and a large number of non-governmental organisation highlight serious problems resulting from the way the system works. At the European level, the Parliamentary Assembly of the Council of Europe recently set out its worry about the excessive use of detention by European countries and the long list of serious problems which arise as a result.

First of all, immigration detention has harmful consequences on the physical and mental health of the detainees. Periods of detention are known to aggravate mental stress caused by traumatic experiences- very common amongst people who have fled persecution and civil upheaval. This fact is corroborated by the Home Office statistics: in 2009, 215 people needed medical treatment for self-inflicted injuries, a rise of 20 per cent on 2008. Moreover, research around the world has suggested a link between detention of asylum seekers and mental health deterioration, with the effects increasing in relation to length of detention.

In its most recent annual report, the organisation Medical Justice expressed concerns about the re-traumatism of torture and rape victims when subject to detention, the denial of treatment, the non provision of anti-malarial drugs, the detention of people who are HIV-positive and the denial of treatment and access to hospital.

Moreover, frequent allegations of violence and insanitary conditions of detention are also reported. A hunger strike protest involving 50 women detainees at the Yarl’s Wood “fast track” removal centre began on 5 February and continued into March. The centre is infamous for its role in detaining whole families, including those with children. During the course of the hunger strike detainees reported that 70 women were trapped by guard in an airless corridor without water or toilet facilities. Violence and racially abuse directed by the removal centre authorities against detainees has also been reported.

The practice of detaining families with children has come in for particularly harsh criticism from children’s welfare groups. Around 2,000 children are detained each year for immigration purposes. Sir Al Aynsley-Green, the Children’s Commissioner for England published a report in February on the conditions in which children are held at Yarl’s Wood Immigration Removal Centre. He expressed his “profound concern over the treatment and management of children in that location”.

In a previous report published in May 2009, he had argued that the administrative detention of children for immigration control must end. The impact of detention on children can be devastating. Taken from their communities, with little understanding of what they have done to deserve being locked up, detention can significantly impair a child’s mental and physical health.

In addition to obvious human cost of immigration detention, the financial cost to the taxpayer is also very burdensome.

Immigration detention, which costs millions of pounds each year, appears like a poor use of taxpayers’ money. The estimated expense of detaining each immigrant is in the region of £1,000 a week. Recently, the immigration minister himself, Phil Woolas MP, has admitted that the Home Office is paying millions of pounds in compensation to migrants who have been wrongly detained in removal centres. A Freedom of Information request to find out exactly how much was refused by the authorities but a BBC survey has found evidence of payments totalling at least £2 million going out to dozens of cases over the last three years. This amount is based on information obtained from a limited number of law firms and the true cost could be even higher. So, how the government is responding to this indecent waste of public money and to the human concerns?

Clearly inappropriately: although the situation across much of the estate is critical and mainly results from an excessive use of detention as a first resort, the government continues to defend the policy. The Home Office states that: “Expanding the detention estate is a crucial part of the UK Border Agency’s plans to increase the removal of illegal immigrants, allowing the fast removal of those who come to Britain and break the rules.” However, the danger is that as the government builds more centres, it will fill them with more people. More detention centres often means worse centres. There is the added danger that building the centres soaks up resources leaving the public purse short to run the centres and make provision for the people living there.

An issue which will continue to embarrass the government
Immigration detention not only constitutes a waste of money, time and human dignity but it is also not complying with UK International obligations.

In modern democracies, the deprivation of liberty is supposed to be subject to certain conditions which consider the human and civil rights of individuals. Even initially lawful detention becomes arbitrary and contrary to law if it is not subject to periodic review. Indefinite detention without criminal conviction is incompatible with Article 9 of the International Covenant on Civil and Political Rights. While temporary derogation from this provision is allowed in Article 4 of the ICCPR, such derogation is only possible “in time of public emergency which threatens the life of the nation” and “to the extent strictly required by the exigencies of the situation.” Persons deprived of their liberty are entitled to a prompt trial or release, and in cases of arbitrary detention, they are entitled to compensation.

Nevertheless, a restrictive immigration policy cannot justify indefinite detention. In compliance with the Article 5 of the European Convention on Human Rights, detention must be proportionate to the objective (securing the removal of the individual from UK territory), and alternatives to detention must have been properly considered for detention to be lawful. Consequently, as long as the government keep following the same policy and practices it will contravene to its international obligations.

As long as this gap between obligations derived from international human rights law and the practices of the UK authorities remains, the government will be the subject of censor by any courts required to take these standards into account.

In addition to the surveillance of a legal community concerned about human rights standards, the immigration detention will continue to trouble the government because concerns about detention are becoming entrenched within civil society itself. Doctors, Church leaders, trades unionists and ordinary citizens are increasingly a part of the contest and numerous actions and petitions are emerging.

What changes for a better system?
If we are to move away from the current position of widespread concern about this aspect of immigration policy, the Home Office will have to end the routine status of detention as a part of immigration management procedures. It must be used only in last resort and be limited to cases where there is an objective justification in line with the requirements of the 1971 Immigration Act. This implies that decision-making by UKBA and the bail courts must be evidence-based. Furthermore, the detention of vulnerable people such as disabled people, children or mentally ill people must end.

A fair and transparent system of review of detention should also be created. This one could be a monthly, automatic and independent review of detainees’ detention.

Finally, the Home Office must adopt a maximum time limit for detention. Only a statutory limit can prevent abuse and reduce the unacceptable stress experienced by indefinite detainees.

In parallel, it is obvious that alternatives to the detention, cheaper and more humane, should be introduced into the immigration policy. Taking inspiration from the Council of Europe Parliament report, different alternatives should be deemed as placement in special establishments (open or semi-open); registration and reporting, release on bail/surety; controlled release to individuals, family members, NGOs, religious organisations, or others; handover of travel and other documents, release combined with appointment of a special worker and electronic documents or electronic monitoring.

These alternatives must be put into practice and would probably contribute to solve some of the numerous issues resulting from the UK immigration system.

As Winston Churchill said “Nothing is more abhorrent than to imprison a person or keep him in prison because he is unpopular. This really is the test of civilisation”. It is time for the UK government to pass the test and treat migrant with dignity in compliance with its legal obligations, as unpopular as they are.